JUAN GONZALEZ: CIA Director Michael Hayden acknowledged Tuesday that the Agency had used the interrogation technique known as waterboarding on three individuals since the attacks of September 11th. Hayden also claimed the CIA has practiced what he called “enhanced interrogation techniques” on one-third of the around 100 prisoners he says have been detained. Hayden made the admission in testimony before the Senate Intelligence Committee.

MICHAEL HAYDEN: Let me make it very clear and to state so officially in front of this committee that waterboarding has been used on only three detainees. It was used on Khalid Sheikh Mohammed. It was used on Abu Zubaydah. And it was used on Nashiri. The CIA has not used waterboarding for almost five years. We used it against these three high-value detainees because of the circumstances of the time. Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent.

JUAN GONZALEZ: All three men that Hayden admitted had been subjected to waterboarding are named in the final 9/11 Commission Report. The Commission relied on information obtained from a number of suspected al-Qaeda members in US captivity, only ten of whom are mentioned by name. Khalid Sheikh Mohammed, in particular, emerges in the report as the “principal architect of the 9/11 attacks.”

An NBC investigation released last week alleges that the Commission had long suspected the information used for its report was the product of harsh interrogations. The NBC analysis shows that more than a quarter of all footnotes in the 9/11 Commission Report refer to controversial interrogation techniques. Yet, Commission staffers did not question the CIA about its techniques. They even ordered a second round of interrogations in early 2004 to get more information from the detainees.

AMY GOODMAN: Philip Zelikow was the executive director of the 9/11 Commission. He is now professor of history and director of the Miller Center of Public Affairs at the University of Virginia. He joins us from Charlottesville, Virginia. We’re also joined here in the firehouse studio in New York by Robert Windrem, NBC News investigative reporter who co-authored the analysis of the 9/11 Commission Report, and by Michael Ratner, the president of the Center for Constitutional Rights. We welcome you all to Democracy Now!

Robert Windrem, why don’t you lay out what you discovered?

ROBERT WINDREM: Well, what we looked at, we started to take a look early on in this, not as part of the story that actually evolved, but we looked at what can you find out from the footnotes from the 9/11 Commission Report on the interrogations, because it is the single most detailed record of what can be found on the interrogations. Obviously, there’s no CIA reports on this, but since the Commission so deeply relied on it, we figured, well, let’s just go through it. And as we began to look, the detail began to emerge, the numbers began to emerge, and also the critical information, it became quite clear, had come from the interrogations. And so, we decided at that point, well, let’s just take — let’s just run through some Excel spreadsheets, see what we get. And ultimately, we came out with what Juan had said, about a quarter of the Commission’s footnotes rely in some way on the interrogation reports.

And the footnotes, by the way, are very specific. They give the individual who was interrogated, they talk what date, and also, if you can refer back to the text and in some cases within the footnote itself, what they provided. And so, it does show that the Commission absolutely needed this detail in order to proceed with its report, and also, after talking to a number of people both within the CIA and within the Commission, that there was no real discussion of interrogation techniques that were used in order to provide this. And, in fact, several people we talked to — three people we talked on the Commission staff, including Mr. Zelikow, said that, yes, they had guessed or suspected that harsh interrogation techniques were used, but they did not go forward because it was not part of their mission.

AMY GOODMAN: They didn’t question, you’re saying.

ROBERT WINDREM: They did not question them.

AMY GOODMAN: And you’re saying that they ordered a second round.

ROBERT WINDREM: There was a second round.

AMY GOODMAN: These interrogations.

ROBERT WINDREM: If you go through the footnotes —-

AMY GOODMAN: The Commission.

ROBERT WINDREM: The Commission. And the Commission and the Agency both told us -— these are Commission staffers and the Agency staffers — both told us this, that essentially the first round of interrogations were needed to look for what were the impending attacks, whereas the — and they were sort of prospective questioning, whereas the second round that was called for was essentially to fill in details more retrospective on what happened on 9/11. And these took place in early 2004. And there were, from what we could trace through the footnotes, about thirty of them, thirty separate sessions that took place during that period of time.

JUAN GONZALEZ: And, Philip Zelikow, your response, and also about this issue of whether you saw it as your mission to look at whether the — how the interrogations and the answers to the questions of those prisoners were obtained?

PHILIP ZELIKOW: Well, of course we questioned CIA about how the information was obtained. I mean, the notion that we didn’t ask CIA how they questioned these people would strike anyone in the government now as being deeply ironic, because they’re currently under a federal criminal investigation probing exactly how they answered our questions about the way the interrogations were conducted. We asked for information about the context, about the circumstances under which the questions were asked, about the specific kinds of questions that were asked, about the demeanor of the interrogators and the people who were being interrogated. We asked a host of specific questions repeatedly and in writing from CIA, and then, when we were not satisfied with CIA’s answers to those questions, we spotlighted our concerns in a text box in our report that transparently stated: here are concerns about the nature of this material; we’re going to sift and evaluate it as best we can, even though CIA won’t tell us all the details we wanted to know and even though CIA and the administration refused to give us the direct access to the detainees that we then requested.

AMY GOODMAN: Did you know that these questions were obtained under duress, under torture?

PHILIP ZELIKOW: We did not know that. We could see that they were extremely reluctant to tell us about the circumstances, and therefore we could only assume that they felt they had something that they wished — they didn’t want the Commission to know about.

AMY GOODMAN: Did you ask if they were obtained through torture?

PHILIP ZELIKOW: We asked how they were obtained.

AMY GOODMAN: And what were you told?

PHILIP ZELIKOW: It was — we were told we can’t go in — we can’t tell you that. And we asked those questions — that’s why when the disclosure came out about the CIA tape recordings, people immediately said, “Well, did the Commission asked for information of this kind?” And we immediately prepared a report, which I did, actually, for Tom Kean and Lee Hamilton, which has been leaked to the New York Times and is available on the internet, that details exactly how thoroughly we questioned CIA about the information surrounding these interrogations. And CIA’s alleged withholding of information from us is currently one of the subjects of the federal criminal investigation that’s now underway.

JUAN GONZALEZ: Now, I’d be interested to know what kind of discussion went on among the staff and the Commission members once you were rebuffed by — in certain ways by the CIA in giving you a clear sense of how they obtained the information, whether there was discussion to try to seek to talk to some of these detainees directly by the Commission or to battle over that issue?

PHILIP ZELIKOW: Both. And actually, my report to Kean and Hamilton, which, as I say, was leaked by someone in the government to the New York Times and is available on the internet, actually gives the specific details about our efforts to both press the administration generally on this issue — and that issue, by the way, went all the way up to discussions directly between Kean and Hamilton and George Tenet and then was escalated past that to further discussions involving Lee Hamilton with White House counsel Gonzales, George Tenet and Don Rumsfeld, in which they simply flatly said, “We can’t give you the access to the interrogators that you want, and we can’t give you the access to the detainees that you want. If there are some particular follow-up questions you want to pose to try to clarify some of the inconsistencies and contradictions in the information you are getting, we’re happy to forward those questions on to the interrogators, but we won’t let you talk to the people yourselves in order to evaluate the information.”

Understand, the Commission is operating under a specific statutory mandate from Congress. Our mandate from Congress was to find out the facts and circumstances surrounding the 9/11 attacks. Therefore, we tried to get all the information that would help us do that. And when we got the information from these interrogations, we were dissatisfied with its quality and detail, and we listed our dissatisfactions repeatedly and in writing to the government. We then followed up with them in a variety of different ways to probe more deeply.

But if I can underscore one more point just so that we don’t lose perspective on this, Khalid Sheikh Mohammed and Ramzi Binalshibh bragged on Al Jazeera about carrying out the 9/11 attacks before they were captured, so I don’t think that there is a significant question as to whether or not they are truthfully claiming to be involved in these attacks. They said that before they were caught.

AMY GOODMAN: Michael Ratner, you’re the president of the Center for Constitutional Rights. Your response?

MICHAEL RATNER: You know, when Robert called me to talk about this story and what he had found, essentially the key chapters being based substantially on evidence from torture, I actually was really shocked by it. I mean, I didn’t know that. I work in this field, and I didn’t know that. And I was shocked by it because we all know that our own court cases have said evidence from torture is not reliable. And here you have a report that’s supposed to tell us what actually happened in its key chapters on the planning of 9/11, what actually happened when the people came into the country, and you look at those footnotes, and they’re based on torture. What it has to tell you is to be very, very skeptical about a number of the conclusions in that report. You just can’t rely on evidence of torture. We all know that. Think about it. If the Bhutto assassination — if the government of Pakistan issued a report, and we knew it came out of torture, would any of us be sitting at this table believing it? Would we believe that about the assassination of Kennedy, if it came out of tortured people? No, we wouldn’t. Why are we accepting this? That’s not saying it’s not true, but it’s saying we have a big problem here now, because we have evidence of torture.

The second response I have, and it’s really to Phil, is if he suspected torture when he went back for that second round of questioning, didn’t Phil — didn’t you expect that they might continue to do torture to get answers from people? And isn’t that sort of putting the Commission in a place where it’s really sort of a handmaiden of continuing torture? I mean, I was really, really shocked by that. By that time, in early 2004, there was some evidence — and more than some — that torture was being used. We had torture articles about Afghanistan. We had — early in that period, we had the Tipton Three people coming out of Guantanamo talking about torture by March or April. By April 28th, of course, we had Abu Ghraib. And yet, the report of the Commission comes out after this, comes out, you know, six months after those revelations. So it puts the Commission really, I think, and the report, in a very, very scary place, where it was really based, in my view, on torture, and it’s a sad comment.

AMY GOODMAN: Philip Zelikow, your response, chair of the 9/11 Commission — executive director of the 9/11 Commission?

PHILIP ZELIKOW: I think Michael Ratner’s concerns are legitimate concerns, but I think he overstates the case when he says these footnotes are based on torture, this evidence is based on torture. He doesn’t know that. And he doesn’t even know that the information from Khalid Sheikh Mohammed in these particular interrogation reports came from torture.

AMY GOODMAN: Do you know —-

PHILIP ZELIKOW: We don’t know that. He doesn’t know that. No one knows that.

AMY GOODMAN: —- that they didn’t, Philip Zelikow? Do you know that they didn’t?

PHILIP ZELIKOW: No, of course I don’t know that they didn’t, and I don’t know that they did. So what’s the obligation here? The obligation is, tell the public what you know, tell them how you know it, citing all your sources. If there are some things you don’t know about the sources, tell them that, too. We did. So now, what’s the next — we’ve given them all the — the public all the information we can so that people can write the stories today raising these questions. And we laid it all out for people to examine, including our citations and our concerns. We pressed the questions about the nature of these interrogations as hard as we possibly could, and the CIA’s failure to answer in some cases is now the subject of criminal investigation.

So what’s the next step? The next step has got to be then, if you want more reliable information through a trial, then bring the people to trial. I’ve been an advocate both inside and outside of the government of bringing these people to trial in every possible way. And perhaps a little bit due to my efforts, a couple of years ago the President decided that those people would be brought out of the black sites and brought to trial. And my hope is that when they are eventually brought to trial, we’ll have a chance to gather more information, perhaps through a more adversarial process, and check on some of the assertions.

But if people will look at the footnotes carefully and look at the way they’re used in the report, we took into account some concerns, we tried to get multiple sources of information on controversial points that we thought might be questionable. Where we thought the detainees might not be truthful, we say so. We relied heavily on information from the German investigations in Hamburg, from the Spanish investigations in Spain, from information gathered in the largest criminal investigation ever conducted in the history of the United States to reconstruct the forensic evidence on all this, and, of course, the televised confessions and bragging of bin Laden and KSM.

JUAN GONZALEZ: Philip Zelikow, if I can, I’d just like to bring in Robert Windrem again on this issue of — he says that basically the Commission disclosed all of the sources of its information, and it was there for anyone to see. In your report, what did you conclude on that?

ROBERT WINDREM: There is — and Mr. Zelikow pointed this out to me, as did two of his former staffers — there is on page 146 of the Commission report a description of why they decided to use the interrogation information. But — and where is — wherein that box, as it’s referred to, has some information about their concerns, it does not state that they had concerns about these interrogations being undertaken with duress. It did not state that specifically. And talking to Mr. Zelikow and talking to two of his former staffers, they did express at that time certain concerns about — and as Mr. Zelikow said to me, they guessed that there was harsh interrogation techniques used. There is a general description on that box on page 146 of their concerns, but it does not go specifically to the issue that we’re discussing here today, which is whether these interrogations took place under duress. And that was certainly something that there were internal discussions on within the Commission staff.

AMY GOODMAN: We’re going to come back to this point in a minute; we have to break. We are talking to Philip Zelikow, he is the executive director of the 9/11 Commission, now professor at the University of Virginia; Robert Windrem, NBC News investigative reporter who broke the story on the 9/11 Commission Report and how much of it is based on torture, on information that was obtained under torture; and Michael Ratner, president of the Center for Constitutional Rights. We’ll be back in a minute.

[break]

AMY GOODMAN: We’re talking about an NBC report. You can go to [deepbackground.msnbc.msn.com] to get more information on the report that says that about a quarter of the footnotes — was it, Robert Windrem? — the footnotes of the 9/11 report were based on coercive interrogations of prisoners. Robert Windrem is our guest, NBC News investigative reporter; Michael Ratner, Center for Constitutional Rights; and we’re joined in Charlottesville, Virginia by the executive director of the 9/11 Commission, Philip Zelikow.

Michael Ratner I cut you off just before break. Your response?

MICHAEL RATNER: Well, I was a bit surprised to hear Phil say that you can’t assume that the evidence that he had from interrogations was based on torture. Can I say it 100 percent? No. But you can say that he based it on Zubaydah, Khalid Sheikh Mohammed and others, who we now know were waterboarded, and they’re the evidence that’s used. So you put two and two together, you get four. You get the fact, essentially, that these people were tortured to get their testimony.

And the question that Phil didn’t answer for me is, really, when he went back for the next round of thirty questions, did he think that torture might be used to get those answers, and when he had his meeting, which he had with Kean and Hamilton and Tenet, he sat in a room for a number of meetings with Tenet, the head of the CIA, asking about access to the witnesses. Did he ask Tenet whether these people were tortured?

AMY GOODMAN: Philip Zelikow, did you ask Tenet whether these people were tortured?

PHILIP ZELIKOW: I did not, but that wasn’t —- I wasn’t the person who was pushing the issue directly with Tenet. That was more the job of my bosses on the Commission: Tom Kean, Lee Hamilton and other commissioners. It was -—

AMY GOODMAN: And did they question George Tenet directly?

PHILIP ZELIKOW: I’m sorry?

AMY GOODMAN: Did they ask him, were these prisoners tortured?

PHILIP ZELIKOW: They did not ask him, as far as I know. Now, they were present in meetings I didn’t attend. But as far as I know, they did not ask him directly what interrogation methods had been used. They asked — they said we need all the details surrounding this question. We need to know how these people were questioned. We need much more details. We want to talk to the interrogators. We want to talk to the people themselves, so that we can ourselves assess the credibility of these accounts that we are using, because we’re not satisfied with what you’re giving us.

AMY GOODMAN: Robert Windrem, let me put a question to Robert Windrem. This issue of the prisoners now saying that they were tortured, coming before a Pentagon tribunal, four of them saying they gave the information only to stop the torture?

ROBERT WINDREM: At least four, because there was large sections of the testimony of the combatant status review tribunals that was redacted by the Pentagon. Those sections invariably were sections about torture, torture interrogation methods, however you want to describe it. But at least four of them said indeed that they had provided information only as a result of being tortured. And they used the word “torture.” They did not use “enhanced interrogation techniques.” They said “torture.” And two of them, as I recall, said that they recanted what they had said during those interrogations, because it was not the truth. And Abu Zubaydah, in particular, went into detail as to what he had said under torture and what he was now recanting. So you do have now the other issue of a public record, once again, the combatant status tribunal hearing record, which says that there was torture and also that indeed it led to false testimony.

JUAN GONZALEZ: I’d like to ask you, Philip Zelikow, on the issue of —- the book by Philip Shenon, The Commission: The Uncensored History of the 9/11 Investigation, raises obviously some disturbing criticism, in addition, about the Commission’s work. I was struck in particular by the questions he raised about your communications with Karl Rove during that period and also that the issue of whether you sought to have your secretary remove the logs of your phone calls with Karl Rove during that period. Could you respond to those issues raised bby Shenon?

PHILIP ZELIKOW: Well, not only can I respond to them, the commissioners actually have responded and will respond to anyone who asks them, because I was authorized by the Commission to talk to White House officials regularly, as was the general counsel, Dan Marcus. But on this business of Rove, it’s a little ironic, since I don’t even really know Rove. We had two brief contacts that had to do with University of Virginia business, because I used to direct a presidential research center. In both cases, we handed off the issues to others. The university actually has records on this matter. I told Shenon all of this.

The business about phone logs, actually two of the three people who took my calls don’t even remember the story. This appears to be a garble having to do with -—

AMY GOODMAN: Well, Philip Zelikow, then let’s ask —-

PHILIP ZELIKOW: —- whether the message slips would be left out on the counter. I mean, this —-

AMY GOODMAN: Well, let me ask you directly this very straightforward allegation of Philip Shenon, that he said that you called in your secretary, shut the door, informed her she was no longer to keep phone logs of your contacts with the White House. She got so alarmed that she -— thinking it was improper, that she went to the chief lawyer for the Commission to alert him about what’s happened. Did you tell her not to keep logs of your White House calls?

PHILIP ZELIKOW: Yes, well, if someone will just go talk to the chief lawyer of the Commission, you don’t have to rely on my account of this. I mean, there other people who have knowledge of these facts. And there’s no there there.

AMY GOODMAN: And so, you’re saying you did not tell her?

PHILIP ZELIKOW: This is a —-

AMY GOODMAN: You did not tell her not to keep logs.

PHILIP ZELIKOW: There are no phone logs for the Commission. There are no phone -— the Commission had no phone logs. So I couldn’t tell her not to keep logs in a situation where the Commission didn’t have phone logs.

AMY GOODMAN: But she kept your logs.

PHILIP ZELIKOW: I mean, this is — I mean —-

AMY GOODMAN: She kept your logs.

PHILIP ZELIKOW: No, I did not have any phone logs.

AMY GOODMAN: So you’re saying you did not -— this is a completely fabricated story?

PHILIP ZELIKOW: I did not have phone logs. This is a garble of something that’s probably come second — you know, two or three layers removed from people who don’t actually understand the way our office worked. But no one in the office thought that I was concealing anything from the commissioners, and the commissioners don’t think I was concealing anything from them, because they were briefed on all these contacts.

And they also knew very well what my relationship with the White House was, since, as the commissioners have recently put it, Zelikow was the White House’s biggest problem. And they, the commissioners, if you will just call them and ask them, will point out that I was actually a source of constant trouble for the White House, and the White House had hoped that the Commission would put someone else in my job. And in fact, the White House’s biggest supporters, like Bill Safire, were slamming me in their columns during 2004, because I was leading the Commission to knock down the theories they supported. So it’s —- I think this -—

JUAN GONZALEZ: There appears to be, at least according to Shenon, one commissioner, Mr. Zelikow, Max Cleland, who did raise questions about what was happening on the Commission, and he was removed, according to Shenon, because of his — or shortly after raising his criticisms of what he thought were cover-ups occurring in the Commission. He was removed. Is there any accuracy to that Shenon claim?

PHILIP ZELIKOW: He was not removed. Max resigned from the Commission. There are commissioners who know very well the circumstances of Max’s resignation. And if anyone wants to know more about this, he should talk to either Max or Tom Daschle or the commissioners involved, because Max resigned on his own and quite voluntarily for very personal reasons that commissioners know about, but which I was not a part of at all.

AMY GOODMAN: One of the points that Philip Shenon makes in his book, The Commission, is not only your relationship — your ongoing relationship with Rove, but with Condoleezza Rice, which went way back before the Commission, of course, that you co-authored a book with her.

PHILIP ZELIKOW: May I just stop you, though? When you say my “ongoing relationship with Karl Rove,” I had no ongoing relationship with Karl Rove. I’ve never worked with Karl Rove. I’ve never had any political dealings with Karl Rove at all in my life. So this is — your question just kind of assumes things that just aren’t true.

AMY GOODMAN: He talks about —-

PHILIP ZELIKOW: Now, I have had a relationship with Condi Rice, sure.

AMY GOODMAN: —- conversations that you had with Karl Rove at the White House and also a longtime relationship with Condoleezza Rice and talks about —-

PHILIP ZELIKOW: Sure.

AMY GOODMAN: In the book, he talks about how the staff felt pressured and that any negative references to Condoleezza Rice in her role in the lead-up to the 9/11 attacks was whitewashed in the report, because of pressure from you, her friend, her co-author, longtime colleague.

PHILIP ZELIKOW: But, you know, Shenon doesn’t say that.

AMY GOODMAN: Well, he does argue -—

PHILIP ZELIKOW: Shenon doesn’t say the report was — excuse me, Shenon does not say the report was “whitewashed,” quote/unquote, in any way at all.

AMY GOODMAN: Well, let me say that he talks about the pressure that high-level staffers felt when talking — when writing about Condoleezza Rice.

PHILIP ZELIKOW: Oh. Well, why don’t you — you or any journalist should call up the high-level staffers and ask them. And ask them whether or not they felt that they were bullied or pressured. The leader of that team, who worked in the Clinton White House, I’ll add, has gone on the record with the Associated Press saying that their team did not feel bullied in any way at all. He is happy to talk to any reporter about this. Another member of the staff who plays a very prominent role in Shenon’s account wrote to all the commissioners, reached out to all of them, and described Shenon’s account as, quote, “a case study in hype,” close quote. But journalists — so journalists who want to check this out, go talk to them. You don’t have to take my word for it. Go ask them if they felt pressured.

Of course, the irony in all of this was, at the time, the White House’s supporters were denouncing me, and here, three-and-a-half years later, I’m being attacked from the other side. The commissioners themselves don’t feel that they were —- the commissioners feel that they understood exactly how I was running the Commission staff and how I was doing the work. They had transparency into what was going on. And I think they can speak for themselves now on the final product. But Shenon never alleges -—

AMY GOODMAN: What Shenon argues, what he argues —-

PHILIP ZELIKOW: —- that any key facts were left out of the report.

AMY GOODMAN: What he argues is that you sought to intimidate staff to avoid damaging findings for President Bush, who at the time was running for reelection, as well as references to Condoleezza Rice in any damaging way.

PHILIP ZELIKOW: He — you’re saying he says “sought to intimidate,” quote/unquote?

AMY GOODMAN: Yes.

PHILIP ZELIKOW: I don’t think so.

AMY GOODMAN: This is what Shenon alleges in The Commission, in his new book.

PHILIP ZELIKOW: Well, as I — I mean, anyone who was in the White House at the time would find that accusation ridiculous. But, as I say, talk to the staffers. Ask them. Ask them if they thought that I was trying to intimidate them. The leader of the team is happy to talk to any reporters who will ask. So what I’m trying to do is, I don’t want to get into an argument where I’m saying, you know, Shenon says this, Zelikow says that. You don’t have to trust me or take my word for it. Go to the commissioners, go to the staffers, many of whom worked for Democratic administrations. I worked for one month on a transition team. Our general counsel had been the number three person in Janet Reno’s Justice Department.

AMY GOODMAN: Philip Zelikow, we’re going to have to leave it there, because we’re at the end of the broadcast, but I want to thank you for being with us, executive director of the 9/11 Commission, former executive director, now professor at University of Virginia. Robert Windrem of NBC News, and Michael Ratner, president of the Center for Constitutional Rights.